Tuesday, 25 September 2007

Currently there is one system of law covered property settlement for married couples who want a property settlement- under the Family Law Act, which is Commonwealth law and applies throughout Australia.

For de facto couples, different rules apply in each of Australia's eight States and Territories. Tonight I'll focus on Queensland.

Why formalise a deal?

There are some obvious reasons:-certainty- the knowledge that the financial issues between you and your ex are at an end and you can move on with your life. There is nothing quite like acting for a client who has come to see you because they had an informal property settlement, thinking that it was all over, and their ex has applied to court asking for more.

- being able to borrow- Often banks will require a client when refinancing to formalise the deal- for obvious reasons- the bank also wants to ensure that its investment is secure and not put at risk.

- tax and stamp duty considerations- There can be exemptions or rollover releif for capital gains tax or stamp duty with formalising a deal which are not available with informal deals.

What's needed in Qld?

In Queensland, there are two methods, both of which are under Part 19 of the Property Law Act 1974. The first way is to have an order made. This can be consent, without the need to actually go to court. made by the Supreme, District or Magistrates Courts. The District and Magistrates Courts can exercise jurisdiction by consent, but usually their upper monetary jurisdiction is $250,000 and $40,000 respectively.

Given the price of houses, most property settlement orders will be made in the Supreme Court. The Supreme Court in Brisbane has a 24 hour turnaround for most consent orders.

The more common method is to enter into a separation agreement. Here are the technical requirements:-A separation agreement is an agreement--

-made by de facto partners-- in contemplation of ending their de facto relationship; or after their de facto relationship has ended; and dealing with all or some of the de facto partners' financial matters.

It does not matter whether there are other parties to a separation agreement or a separation agreement deals with other matters.

At first blush, it seems that

any type of agreement can be a separation agreement. Whilst this is no doubt true, the important trick is to ensure that the separation agreement is a recognised agreement. This is because the Property Law Act prevents the court from making property settlement orders inconsistent with a recognised agreement.

What's required for a recognised agreement

The Property Law Act sets it out:

A recognised agreement of de facto partners is a cohabitation or separation agreement of the de facto partners that--

(a) is a written agreement; and (b) is signed by the de facto partners and witnessed by a justice of the peace (qualified) or solicitor; and (c) contains a statement of all significant property, financial resources and liabilities of each de facto partner when the de facto partner signs the agreement. (2) Whether all significant property, financial resources and liabilities of a de facto partner are stated depends on whether the value of a property, financial resource or liability of the de facto partner that is not stated is significant given the total value of the de facto partner's stated property, financial resources and liabilities.

If you meet these technical requirements, then you comply.

Of course, anyone contemplating entering into a separation agreement (or consent order for that matter) should obtain independent legal advice from a solicitor of their choice, preferably a law society accredited family law specialist.

The last part of the requirement for a separation agreement states what should be obvious- each party should come to the negotiating table with clean hands, with nothing to hide. As I read in one recent court case, it is a case of

show and tell,

not

hide and seek.

Failure to make full and frank disclosure may lead to a finding that there has not been a valid separation agreement, meaning that the whole issue of property settlement is re-opened.

Tuesday, 18 September 2007

The Law Council of Australia, Australia's peak lawyers' body, has published its list of issues to be raised with the political parties ahead of the Federal election.

The most relevant family law issues are:- a call to increase funding to legal aid;- a call for there to be gay marriage or civil unions; and- a call for the establishment of a Comonwealth Judicial Commission in a smilar way to that of NSW, so that proper complaint can be made about the behaviour of Commonwealth judges.

Now for the detail....

Legal Aid InitiativesIt is well documented that legal aid funding isinsufficient to meet the needs of disadvantagedpersons in the community, particularly IndigenousAustralians and people living in rural and remoteareas.There has been a decrease in overall legalaid funding in real terms since 1996 and theestimated additional one-off amount requiredto restore funding even to 1996 levels isapproximately $100M. This increased legal aidbudget should then be used as the basis for futurelegal aid funding.Since 1996 a number of studies have identifiedsignificant consequences of the decrease infunding including a large increase in selfrepresentedlitigants causing considerable delaysin and associated costs to the court system.In addition to the decreases in overall realfunding since 1996, the introduction of newCommonwealth legal aid policies and guidelinesin 1997 meant that legal aid funding for civilmatters was virtually abolished. Civil matters aredisputes (not involving family law, child welfareor de facto property matters) between personsand other individuals or government. The 1997policies and guidelines effectively restricted legalaid to criminal and family law matters. The LawCouncil estimates that an additional one-offallocation of $40M is needed for a civil legal aidscheme. The resulting increased legal aid budgetshould then be used as the basis for future legalaid funding.

With expansion of Commonwealth legislationand significant sustained budget surpluses it iscritical to re-establish a civil legal aid system tomeet the demand for legal services, particularlyin areas such as employment law, consumerprotection, immigration and social security.In light of the recognised difficulties facingIndigenous Australians, particularly in ruraland remote areas the Law Council believesthat tax and other incentives are necessary toencourage young lawyers to practise in rural andremote areas. The Law Council also believesthat increased funding is needed for dedicatedIndigenous Legal Services.

The Law Council asksWill you support immediately providing aminimum one-off payment of $40M to reestablisha civil legal aid scheme and continuingfunding for such a scheme?Will you support immediately increasing fundingfor legal aid overall by a minimum one-offpayment of $100M (in addition to the $40M civillegal aid scheme) and continuing funding at thisincreased level?Will you support increasing funding for dedicatedIndigenous Legal Services?Will you support providing tax and otherincentives to young lawyers to practise in ruraland remote areas?

Civil UnionsThe Law Council is concerned that currentAustralian law defining marriage as the union of aman and a woman is inconsistent with Australia’sinternational obligations under the InternationalCovenant on Civil and Political Rights and withthe recognition of same sex marriages or civilunions in many overseas jurisdictions.The Law Council believes that marriage is a civilright which should be made available to all peopleregardless of sex. The Law Council also believesthat discrimination against same sex couplescannot be adequately addressed without changingthe law in relation to marriage.

The Law Council asksWill you support legislative recognition of samesex marriages or civil unions?

Australian JudicialCommissionThere is currently no federal mechanism to dealwith complaints of negligence, physical or mentalfitness, incompetence or misbehaviour againstFederal judges or magistrates.The Law Council proposes the establishment ofan Australian Judicial Commission to managecomplaints made against federal judges andmagistrates and provide them with education andtraining in collaboration with such bodies as theNational Judicial College of Australia.

The Law Council asksWill you support legislation for the establishmentof an Australian Judicial Commission and provideresources for such a body to manage complaintsagainst and help provide training for Federaljudges and magistrates?

The Australian Government will provide further support to persons affected by international parental child abduction by granting $145,000 to the International Social Service (ISS) Australia, Attorney‑General Philip Ruddock announced . The grant was awarded under the Grants to Australian Organisations Program, which supports organisations to develop projects or activities that boost the public’s access to the federal civil justice system.ISS Australia will use the grant to expand its established support service for persons affected by international child abduction. ISS Australia is the local arm of an international non-government organisation which provides services to families spread across two or more countries.Mr Ruddock said the grant to ISS Australia demonstrates the Australian Government’s commitment to assisting parents whose children had been wrongfully removed to, or retained in, overseas jurisdictions.“The abduction of children across international borders is an extremely traumatic experience for all those affected by it,” Mr Ruddock said.“The Australian Government recognises the need for parents to be able to access services that provide much needed emotional support at this harrowing time.”

She had already successfully applied to have her changed name recognised on the birth certificate.

The Registrar refused to allow the change of gender on the certificate, because the Victorian Act required the applicant to be married. The applicant was married but separated.

The applicant applied to the Federal Court on the basis that the Victorian legislation was discriminatory on the basis of her marital status within the meaning of the Commonwealth Sex Discrimination Act. She was unsuccessful.

Justice Heery held that the provision of the Sex Discrimination Act was legislation:

and not some other form of governmental activity (such as, for example, public education or governmental employment practices) is part of Australia’s discharge of its obligation to legislate as required by the Convention. It is therefore to be construed as prohibiting discrimination against women – treating them less favourably than men – because they are married. The action of the Registrar in the present case had nothing to do with the applicant’s being a woman. Had the applicant been a man, the result of the application would have been the same.

Comment

Given that it takes only one year to pass to be eligible to be divorced, all the applicant had to do to avoid the effects of the legislation was to wait for the year to expire, divorce and then apply- and it should have gone through smoothly.

In Queensland, former Attorney-General Rod Welford ruled that in a case in which I acted, the act of marriage applied to those marrying in Australia only. As my client married outside Australia, she could still obtain the change of gender on the certificate.

The Commonwealth Government has committed to insert provisions within the Family Law Act to provide courts with greater clarity on how to deal with relocation issues arising out of custody arrangements.This commitment is made in the Government’s response to the Family Law Council's Report to the Attorney-General on Relocation. The response was tabled in Parliament.

Attorney-General Philip Ruddock said currently there is no specific guidance in the Act for relocation orders or arrangements. The new legislative provisions will make it easier for litigants to understand the child-focused principles that apply to relocation cases.Specifically the provisions will ensure that courts consider: alternatives to the proposed relocation; whether it is reasonable and practicable for a person opposing a relocation to move closer to the child if the relocation were permitted; and whether the person who is opposing the relocation could assume primary caring responsibility should the person relocating choose to do so without taking the child.Courts will then be obliged to reframe parenting orders in the light of the child’s best interests, considering factors such as whether relocation would interfere with the child’s ability to form a relationship with both parents.Mr Ruddock said the Australian Government is paying close attention to court outcomes to see whether, with or without these amendments, courts are putting children’s interests at the centre of their decision making on relocation cases.“The Shared Parental Responsibility Act 2006 was meant to ensure better outcomes for children and both parents,” Mr Ruddock said.“Today’s commitment is a step to clarify that aim. However as I have always said if there is concern the legislation does not achieve the aims it intended we may need to consider further legislation.”"It is critical the family law system provides a clear, consistent approach to resolving family law relocation disputes, and acknowledges that the best interests of children are the central issue."The Family Law Council report is in response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill in 2005. The Family Law Council is a statutory body which advises the Attorney-General on a range of family law issues.

I recently came across an interesting article by M Debra Gold, a Georgia (US) family law attorney and guardian ad litem (similar to an independent children's lawyer) as to the ten commandments for parents in dealing with guardians ad litem. With Debra's kind permission, I have altered it slightly to refer to Australian jargon and practice:

1. Thou shalt honor thy children.

It is probably the most unfortunate consequence of parenting disputes that at somepoint many children find themselves caught up in the middle of their parents’battles. Be conscious of what you say to or about the other parent while in the presence of, or anywhere near, the children. Know that children can be very adept atpicking up on innuendos and body language. Don’t put your children in the positionof feeling that they must protect or defend the other parent. By the sametoken, don’t put your children in the position that they feel they need to take care of you or your feelings. Your children have the right to love and be loved by both ofyou. Do not interfere with that right.

2. Thou shalt be truthful with thy independent children's lawyer.

Tell the independent children's lawyer everything relevant to your parenting case, good or bad. It’s better that the bad things about you come from you rather than the opposing party because the latter will not hesitate to talk about those bad things and you never know what kind of spin they will put on them. Listen to the independent children’s lawyer's questions and answer them as clearly and concisely as possible. Give specific examples of your complaints rather than broad generalisations. Do not play word games with the independent children's lawyer as he or she is not stupid. It is always amazing how some people think that their lies anddeception cannot be found. What’s even more amazing and actually a little scary iswhen they actually believe their lies. If there is a fact, it can be discovered.Trying to cover up the truth accomplishes nothing other than to doirreparable damage to your credibility. And don’t even begin to think that exaggerating or stretching the truth does not fall under this commandment.

3. Thou shalt NEVER instruct thy children as to what they should orshould not say to the family report writer.

Children’s acting skills are not quite as honed as their parents’ and they are generally much more transparent when they say or do things that do not come naturally to them.

4. Thou shalt be thyself and not pretend to be someone else.

Your own acting skills are probably not as honed as you think they are. The independent children's lawyer will be involved in your case for a long time. He or she and any family report writer will get to know the real you. It will be almost impossible to keep up a façade for such a long time. Further, both will be talking to other people who can give him or her a truer picture of who you are. Don’t think the independent children's lawyer or family report writer is so easily fooled.

As one judge said, it is a case of "show and tell" not "hide and seek". Don’t pick and choose what you want to give the independent children's lawyer. Give him or her anything that is relevant to the dispute. If you send some e-mails but not others,the independent children's lawyer is going to wonder what occurred duringthe gap. If you provide documents with missing pages, the independent children's lawyer will notice. Delaying or refusing to sign authorities so that the GAL can obtain information from your medical or mental health providers will only keep the independent children's lawyer guessing as to what it is you are hiding (and increase the chances of subpoenas issuing). Showing up late, or not at all, to random drugor alcohol testing leads to the obvious inference. Don’t do anything that would tend to cast a shadow of doubt on your credibility. Without your credibility, you havenothing.

It sounds a little trite, but even the best parents place their own interests before those of their children. Unfortunately many parents involved in parenting disputesare so filled with anger, hurt, bitterness and frustration that they lose sight of the forest for the trees and, whether intentionally or not, they place theirneeds and interests over their children‘s. Be conscious of this pitfall when embroiled in custody disputes and don’t allow it to happen to you.

8. Thou shalt comply with all court orders.

Need anything further be said here? Spending time in jail on contempt is not conducive to building a strong relationship with your children or to buildinga strong custody case for your children to live with you.

The independent children's lawyer is not in a position to give legal advice. Itwould be a conflict of interest for the independent children's lawyer to provideany legal advice to either of the parties (and no doubt would play havoc with their professional indemnity insurance). Furthermore, the independent children's lawyer is not your therapist or counsellor. If you have questions or need any advice, call your lawyer or your counsellor.

Your actions are not slipping under the independent children’s lawyer's radar.If there is something to be found out, the independent children’s lawyer willfind it.

The independent children’s lawyer cannot get to the truth of the matter in avacuum. His or her recommendations will be based upon what he or she learns through the investigation. Cooperation and truthfulness are key. Behaviours speakvolumes. By following these 10 commandments one has a much greater chance of obtaining favorable recommendations from the independent children’s lawyer.

Thursday, 6 September 2007

Police in the indigenous community of Normanton are achieving great success in combating domestic violence, Police Minister Judy Spence said today.

Ms Spence said a community based campaign developed by local officers, titled 'Domestic Violence - it's not our game!' has significantly reduced the incidence of domestic violence in the North-West Queensland town.

"It is a sad fact, that domestic violence is especially prominent in some indigenous communities in the state's north," Ms Spence said.

"In Normanton, where 60% of the population is indigenous, there were over 300 reported incidents of domestic violence in 2006 and one in three adults in the town were also involved in protection orders, either as the respondent, the aggrieved or the named person.

"Police in the town are to be congratulated for taking it upon themselves to find a new way to address this tragic trend.

"The 'Domestic Violence - it's not our game!' campaign has allowed the local community to take ownership of the issue, and send a message that domestic violence is unacceptable."

Ms Spence said, under the guidance of the local Officer in Charge Sergeant Dave Rutherford, police are now working with the local rugby league team, the Normanton Stingers, to promote the non-violence message.

"The campaign commenced in March this year, with members of the Normanton Stingers and their supporters wearing jerseys and wristbands carrying the campaign logo, and with banners displayed at all football games," Ms Spence said.

"Furthermore, team members have agreed to make a personal commitment to desist from domestic violence - and have decided that if an individual commits domestic violence they will be subject to playing bans and ultimately excluded from the team.

"Team players are also appearing in television advertisements on the Imparja network promoting the non-violence message, and the message is finally getting through.

"Between March and July this year there has been a 64% reduction in breaches of existing protection orders, compared with the same period last year.

"This is an excellent result and I commend police and the local community for their dedication to making a different."

Ms Spence said it is expected other sporting teams in North-West Queensland will also adopt this program, and there is the potential for this project to become an influential anti-violence campaign within Indigenous communities across Australia.

"There are about 7300 children in care in Queensland and the number is growing," Ms Boyle said.

"I speak on behalf of all Queenslanders when I say a heartfelt thankyou to these dedicated men and women and the organisations that they represent. They have worked tirelessly all year round to make sure that our most vulnerable children and young people have the protection and safety that they deserve."

The winners came from a variety of backgrounds, but all share a common commitment to ensuring the safety and wellbeing of Queensland children.

The awards were organised by the Child Protection Committee, comprising representatives from community agencies, to recognise the outstanding achievements of nominees and winners in the field of child protection.

"The award winners deserve public recognition for their efforts, and I am encouraged that we had so many outstanding nominations this year," Ms Boyle said.

"The people who work in child protection are community heroes. They make a real difference to Queensland children. In fact, they save children's lives."

The award recipients were:

Professional- Mandy Jones, Regional Manager, Anglicare Central Queensland, Rockhampton. A foster care worker since 1997 and a foster carer for over 20 years, Mandy Jones is a member of the Board of Directors for PeakCare Queensland who brings extensive experience to her roles.

Volunteer - John Burton, Coordinator, Edmund Rice Camps, Indooroopilly. For the past 15 years, this organisation has run one-week camps during the school holidays for children with significant emotional, social, behavioural or physical limitations. A number of workers volunteer a week of their annual leave to help run the camps, with Year 12 and university students also volunteering as "buddies".

Public Sector - Detective Sergeant Murray Ferguson, Doomadgee CIB / Child Protection and Investigation Unit. He has been working in Doomadgee and covering Mornington Island and Burketown for the past year and has worked closely with Child Safety staff and traditional Elders to raise awareness of child protection issues.

Regional Program - Ray Krueger, Principal, Glendyne Education and Training Centre at Nikenbah, near Maryborough. This centre, established in 1998, provides integrated treatment and rehabilitation for students who do not cope in mainstream schools. The program includes mentoring and teaching basic life skills in small groups.

Youth Participation - Peta McCorry, CREATE's 'Be Heard' Project, Highgate Hill. This project seeks the views of young people in the child protection system about the quality of care they are receiving.

Queenslanders experiencing domestic and family violence will benefit from a new training course - the first of its kind in Australia - designed to develop a more highly skilled and responsive support system.

The course, written for workers in government and non-government agencies who are likely to be the first point of contact for people experiencing domestic and family violence, was officially launched in Brisbane today.

Communities Minister Warren Pitt said the accredited Course in Responding to Domestic and Family Violence was the first full course of its kind to be offered in Australia.

"Queensland is once again leading the way when it comes to addressing domestic and family violence," Mr Pitt said.

"The course is designed to equip frontline workers with the best possible knowledge and information to help Queenslanders affected by domestic and family violence."

Mr Pitt said the Mackay-based Queensland Centre for Domestic and Family Violence Research produced the course thanks to significant ongoing funding and support from the Department of Communities.

"While there are some accredited units of competency on domestic and family violence in other courses, this particular course is the only accredited full course on domestic and family violence in Australia," Mr Hinchliffe said.

"So not only will it benefit the social services sector with increased staff retention, lower stress levels and better-trained staff, to will also help break the cycle of domestic and family violence."

For more information about the course, contact the Queensland Centre for Domestic and Family Violence Research on 4940 7834.

Queensland Police Commissioner Bob Atkinson has launched an internal investigation about how Gold Coast police failed to respond to an emergency call, but did respond to a second call from the home 3 hours later - after a woman died, allegedly murdered by her son.

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.